19871027 TZHC Mwanza

f2. IN THE HIGH COURT OF TANZANIA AT MWA'ti!ZA APPELLATE JURISDICTIO~ HIGH COURT CRIMIWAL APPR~L ~O. 76 OF 1987 (Original Criminal Case ~Oo 62 of 1987 of the District Court of Musoma District at Musoma - Before E. P. Mtui,Esq.,Senior Resident Magistrate) illLIAS s/o RA1'1Bo. ~ •• o o . o • • • • c . c • • • • • • • • • • • • • • • • • • • • • • • • • o • • • • • • • APPELLJ\l\T'l1 VERSUS THE U"'~ITED REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••• RESP011TDEf'TT CHARGE: Unlawful possession of Service Stores o/s 312 A(3) of the Penal Gode Gap.16. J U D G M E 1\.T •T KATITI 1 J.: Elias Rambo, b~r-Gin the appellant labouring under the conviction un~er the above cite~ Section, with a visitation of eighteenJ!lonths imprisonment, is appealing against sentence, that was i.mposer1, upon his conviction, on his own voluntary plea of_guilty. The appellant Elias Rambo, haA haA occasion to work in the Tanzania army TPnF in his civilian capaci±y as a_cook. However, as direliction_of .:iuty took rlominion over him, he rleserterl his job wa;w back in 1983. An;t as his confession anA concession have it, the same appellant, on 4/2/1987, was founA in unlawful p~ssession of, (1} three army mosquitonets, (2) three army kithags, (3) one army half-s3.ck 9 anrl (4) one army rain coat, an.:! upon the_ appellant plearling guilty to unlawful possession of suGh Tanzanian Army Stores, he was convicte.:i an~ sentence~ to eight months i.mpriso'1?lent, an~ hen•P this appeal by him against sentenceo The appellant,_is inviting me to rerluoe the sentence, an~ whether there are legal groun~s so to ~o~ is now the qusstion. Without preju~ice to the amen..1ment Pi.2hli$bi.n_g the rlistinction between felony an~ mis~emeano\l.rs, for the purposes of sentence, where the offence ohargerl as the one in-the instant case, is a mis~emeanour, the sentencing Court must always be ~efleoten to the provision of Section 35 of the Penal Corle Cap 16, that provi~e for general punishment_for misAemeanours. It is to be observen, that the section rloes provi~e for punishment, with imprisonment for a term not ',. exoeeAing two years or with fine or with both. This means the sentencing magistrates ju~icial ~isoretion has a pen~ulum swinging from absolute nischarge, to the maxi.mum sentence legally allowen, nepennin 5 on the circumstances, whether they are mitigating, or, agg~avating the offence. In this case, the trial sentencing m~gistrate, was i.mpresse~ by the subnissions, ••••.•...• /2. 2 by the Public Prosecutor, th~t, army uniforms are_through experience, put on by impos-ters, who use the same, so camouflage~ in the sai~ army- unifcrms, sometimes in arme.d robberies~ painting the army a barl picture, an~ iJnposen the sentence he nin. I think, 'may be for instructive purposes, it is to be observe= that the Court of App,eal, in its appellate capacity in junicial matters,. -'loes not an~ is not allower1 to behBve like a hea.:imaster over his l.esser teachers.• Whete a sentencing Magistrate has jur1iciall~ applier1 his/her Aiscretion,; within the legal frame work so allowing, ann for reasons given, iJnpose,'11 a sentence he/she has, the Court of Appeal will not exercise its pow13rs to interfere with the sairl sentence, on the mere groun,'11; that han it been trying the case it might have pass.en, a somewhat rlifferent sentence - see. UGALO s/o _OWOURA VR 21 EACA 210 ann RVS RATILAL AMARSHI LAKHAllTI (1958) EACA 140: The Court of Appeal may however interfere with the sentence; where it is· manifestly ex6essive - sea H.A:nIJA d/o OMAR VS R (1970) H.c;:o.wo.158, OGALO s£o OWOURA (1954). 21 EACA 270e But no case in the instant appeal, can be made that the sentenco~illlposo;i, is manifestly excessive~- Equally; a sentence may be interfere~ with, by the Appellate Court, where the sentence is baser1 on wrong principles of santencing, - see J.'i.MES VS R (1950) 18 EA.GA i47, .~ABILI s/o MA,1\TI vs.a (1969) H.C.D. llT0.154. But no such aspeot has been oonvsssed in this case, nox .=1oes it exhibit itself, on recorr1, as to attract ju.:1icial attentiono Anrl inr1eer1, the Appellate Court may interfere with th.a sentence bJt the sentencing Magistrate, if material_factors like age, anA the accuseA being first offenr1er, have been ignorerl - see JAMES (Supra) an;i OGALO s/o OlrlOURI\. (Supra).. Again, I beg to say, that none of such factors have been canvasse~, an-'I in any case the appellant is shewn to almost be veteran of_age, an;i in any case in this case~ the interests of the out-weigh society in general, .-'lo rightly L those of the inrlivirlual. In finality an~ conclusion, I fin;i no way, where_by applying a jurl_icial minA, _I can interfere with the sentence imposeA. The appeal has to be, an~ is -'lismissaA. 3:t~ - Delivered this•••••••••••••Aay of October, 1987. ~---·•-..'.;_., _,A , . '"""' •• ..... ' . MWAllTZA.